legalchap

Friday, 2 February 2018

As I sat at the kitchen table
with the day’s first mug of tea very early this morning, two things leapt out
at me from my social media.

First, I saw a post by a client
and friend of a lovely photograph which heralded the news that her husband had
finally lost his long battle. I can be
sure that she will have nothing but admiration and thanks for the neurosurgeons
and others at one of our region’s leading hospitals who tried so hard over many
months to cure him.

I reflected also upon my own personal (and thankfully non-critical) experience of the NHS and the wonderful people
I have met.

Almost the next thing I saw,
ironically, was the headline on a BBC news page:

“Curb
rising NHS negligence pay-outs..”.

The backdrop to the story hasn’t
changed. It’s the fact that the NHS is
having to part with eye-watering amounts of money to compensate the victims of
clinical negligence.

That's compensate - not punish, not criticise.

It has been on the agenda for
years. In the past these outcries have
led with an attack on the victims and their lawyers. The apparent desire has been to silence the
critics, rather than examining the problem.
See for example Sick, The bitterest pill, and

There are signs that what I have
previously described as the culture of
cock-up, cover-up and clam-up has improved.
Notably, there has been widespread recognition that the dysfunctional
National Health Service Litigation Authority (NHSLA) was a massive part of the
problem.

I have not had any personal
experience of it myself, but there are reports of softening in the attritional
approach to claims resolution.

The degree of transparency is
always difficult to judge but there’s no denying that the service has issues. The
main one is that it is starved of money at one end and haemorrhaging it at the
other.

You may as well fill a sack with
a hole in the bottom. What somebody
needs to do is fix the hole.

Remember, remember – every single
payment is the product of a proven or admitted mistake.

Of course, we are always focused
on the cost of it. For too long,
commentators – and influencers – have obsessed with the price of it and in
particular the legal costs. One hopes
that the culture of defend, deny and
delay has been so comprehensively exposed as to demonstrate why that’s the
fault of neither victims nor their lawyers.

Now it seems that the message is
simply one of affordability. The article
quotes the letter as saying:-

“We fully accept that there must be
reasonable compensation for patients harmed through clinical negligence but
this needs to be balanced against society’s ability to pay.”

This is chilling from the point
of view of victims and those of us who think we live in a society that should
give priority to the needs of its vulnerable members.

Compensation for personal
injuries, whether as a result of clinical negligence or otherwise, is not as
many people seem to believe some sort of bingo win.

It’s right that there’s an
element of injury awards or settlements that compensates for pain, suffering and loss of amenity
(PSLA) – and why not – but many people would be surprised what it is that
really makes up some of the bigger awards about which we hear and read.

The reality is that those cases
in which millions of pounds are awarded or voluntarily paid are built on the
need of the innocent victim for many years of medical and nursing care, special
accommodation etc necessary just for them to live the rest of their terribly
impaired life.

What do the economists here
propose that we do with the children and others who have been horribly brain-damaged
or rendered tetraplegic, often at birth?

Smile sympathetically and tell
them, or their carers, that we are dreadfully sorry but really, we can’t afford
to do anything to help them?

How lawless and helpless are we
going to become in this country?

What is so ridiculous here is
that the problem should be soluble. As
the wailers proclaim, we are spending money paying for cock-ups that should be
spent preventing them.

That could change, just by
re-directing the spending. Invest in a
proper service and it will be self-funding.
Arguably, this is just (yes, I know) a matter of cash flow.

Before that, though, it’s still a
matter of culture. As anyone who has spent any time looking at this objectively
knows, that headline should have read:-

Friday, 8 September 2017

It’s good to see the autumn parliamentary
term kick off with the government being put on the rack about the estimated £32
million in refunds that it owes to all the individuals who were unlawfully
charged fees to pursue Employment Tribunal claims over the last four and a
quarter years.

Seven judges of the Supreme Court
delivered their unanimous judgment in UNISON
v The Lord Chancellor six weeks ago.
It left the government with no option but to concede that the fees taken
since Spring 2013 must be returned.

Since then all we have seen or
heard have been vague mutterings about working out how and when this is going
to happen. Quite right that Shadow
Justice Minister Richard Burgon should this week demand to know what’s going
on. Good on the Shadow Minister also to
invite an apology from the Minister of State for Courts and Justice.

Dominic Raab’s curious response
is:-

“We admit we got the balance wrong and took
immediate steps to address this. Of
course I am happy to say sorry to anyone who was impacted by this and that is
why we are putting in place measures to ensure people are compensated.”

He added that these plans are to
be published “shortly”.

Well, you are right – you did get the balance wrong. “Immediate
steps to address this”? That seems to
have passed me by.

What I saw was four years of many
people in this profession and industry telling your government, as they had
done before the fees were introduced, that it was unfair and would amount to a
denial of access to justice for meritorious claims.

After the new fees began to bite
and the effects were as foretold, proving undoubtedly that the balance was
wrong, your government took no steps to address it – other than to dismiss
criticisms and fight the judicial review proceedings brought by Unison.
The Supreme Court judgment was the culmination of two applications in
the High Court followed by an unsuccessful expedition to the Court of Appeal.

The truth is that the government
has ignored and defied the entirely justifiable criticisms levelled at it
throughout a period of approximately five years including the “consultation”
(in now typical format) and taken no steps to correct its error.

Even now, this shameless
administration is stalling, maintaining its clutch on individual sums of
hundreds of pounds which represents significant amounts as far as each of the
claimants is concerned.

It’s repugnant.

The whole episode of grotesque
behaviour by our democratic government is only – and briefly so far – eclipsed
by the dazzling splendour of Lord Reed’s judgment, in particular at paragraphs
67 to 69:-

“67. It may be helpful to begin by explaining briefly the
importance of the rule of law, and the role of access to the courts in
maintaining the rule of law. It may also be helpful to explain why the idea
that bringing a claim before a court or a tribunal is a purely private
activity, and the related idea that such claims provide no broader social
benefit, are demonstrably untenable.

68. At
the heart of the concept of the rule of law is the idea that society is
governed by law. Parliament exists primarily in order to make laws for society
in this country. Democratic procedures exist primarily in order to ensure that
the Parliament which makes those laws includes Members of Parliament who are
chosen by the people of this country and are accountable to them. Courts exist
in order to ensure that the laws made by Parliament, and the common law created
by the courts themselves, are applied and enforced. That role includes ensuring
that the executive branch of government carries out its functions in accordance
with the law. In order for the courts to perform that role, people must in
principle have unimpeded access to them. Without such access, laws are liable
to become a dead letter, the work done by Parliament may be rendered nugatory,
and the democratic election of Members of Parliament may become a meaningless
charade. That is why the courts do not merely provide a public service like any
other.

69.
Access to the courts is not, therefore, of value only to the particular
individuals involved. That is most obviously true of cases which establish
principles of general importance. When, for example, Mrs Donoghue won her
appeal to the House of Lords (Donoghue
v Stevenson [1932] AC 562), the decision established that producers of
consumer goods are under a duty to take care for the health and safety of the
consumers of those goods: one of the most important developments in the law of
this country in the 20th century. To say that it was of no value to anyone
other than Mrs Donoghue and the lawyers and judges involved in the case would
be absurd”.

We have reached a worrying
position where the executive needs to be reminded of the purpose of a democracy
and then reminded of its duty to comply with the findings of the senior
judiciary.

Of course, many are saying
– with some force – that there is more to come.

Lord Reed also said, with
the approval of all his colleagues, that:-

“People and businesses need to know, on the
one hand, that they will be able to enforce their rights if they have to do so,
and, on the other hand, that if they fail to meet their obligations, there is
likely to be a remedy against them. It
is that knowledge which underpins everyday economic and social relations”.[My emphasis].

This observation, and the general
tenor of the judgment, exposes again the complete absurdity of the suggestion
from Lord Faulks, two and a half years ago, that litigation is an Optional activity.

This was his Lordship’s
justification for the hurried introduction of the huge increase in civil court
fees (county and high courts) which saw the price of bringing a claim at some
levels rise to 760% of
what it was.

There’s no doubt that these fees
represent a denial of access to justice.
Nobody can say that the levels were so wrong beforehand. It’s all part of the government’s policy of turning
courts into profit centres – if it possibly can.

QED, yet again, the ill-fated
attempt by the former Lord Chancellor (sic) to hike probate court fees by, at
the top end of the scale, a factor of 129!

The parliamentary commission that
laid the stinger in the tracks of that juggernaut observed that Miss Trust’s
planned changes “Seemed to have the hallmarks of taxes rather than fees”.

That’s exactly what it is – all
of it.

That particular robbery was thwarted
in its planning stages. Thanks to the
heroic efforts of Unison, the ET heist has been stopped and – hopefully – the
ill-gotten gains will be returned to the victims.

It’s now high time justice was
done in relation to the rest of the court fee system. Time to get the balance
right.

Thursday, 18 May 2017

Charging orders have long been an
important tool in the enforcement and asset recovery kit. Procedure has
“evolved” over the years.

I can remember a time when these
applications were governed by the provisions of the County Court Practice (aka “The Green Book”). The remarkable feature then was that a
hearing would always be listed, as a matter of routine, to decide whether the
initial order nisi should be made absolute.

In the nineties (whoops!) I led a
team of people dealing with enforcement work including charging orders. Every week we would organise attendances at
hearings where the debtor did not turn up and the charging order was confirmed
along with fixed costs that never covered the actual expense of being prepared
to deal with whatever happened.

I wrote to the chief
clerk (sic) of our favourite and most-used local court suggesting that a better
system would be to require the debtor to give notice if he or she intended to
oppose the making of a charging order absolute.
If they did so, we would have a hearing in the usual way.

If they didn’t give the requisite
notice at least seven days before the hearing, we could simply rely on a
request for the charging order to be made absolute in absence. If the debtor then turned up, having failed
to give notice, the application would be either granted or adjourned.

The suggestion was quickly
accepted and implementation followed in a number of other courts and was later
adopted within the CPR. It’s basically
what then happened for a number of years until last April.

Now we have a new system whereby
all charging order applications have to be made to the CCMCC in Salford,
following the lead of the requirement that all “money claims” be issued out of
that court rather than local county courts.

Now the procedure is that after
an interim order is made and served
within 21 days, we wait another 28 days to see if the debtor has any objections. If by the end of “Day 49” no objection has
been filed, the court will make a final
order without the need for a hearing.

So, it gets better and better… or
does it?

Here’s the message that we
received from the CCMCC in response to the latest enquiry last week about an
overdue order:-

“We are aware that there is a delay in the
receipt of final charging orders after “Day 49” pursuant to the centralisation
of charging orders protocol. Currently
it is taking around 33 days for you to receive a final charging order from day
49. We apologise for this delay and are
doing our upmost (sic) to address the situation to bring it back in line with
the protocol. We are working closely
with the judiciary bringing extra DDJs into the business to work through the
increased amount of work which has built up.”

We are not aware that there is
any objection in this case. So what is
it taking nearly five weeks to do?

The answer would appear to be to
“rubber stamp in the absence of any objection from the debtor the interim
charging order that was made perhaps as long as three months ago or longer”.

How can such a seemingly simplified
system have become so wretchedly ineffective? Why does it need to go “on the
shelf” (Lord Briggs, are you there?) and wait for a judge to look at it?

Charging orders couldn’t be
simpler in most cases. If the judgment is unpaid and the debtor owns the
property – bingo.

Like all the other changes,
including the 660% rise in court fees, this is an innovation aimed
at achieving greater efficiency. Actually it’s all part of a system which is
costing the user more and delivering shrinking benefits.

Meanwhile I cheer, ironically, as
a notice of issue of a claim form arrives. The notice itself confesses that our
proceedings were received at the CCMCC on 21 April – 4 weeks ago.

Wednesday, 1 March 2017

The motor insurance world was rocked to its foundations today
by the prospect of having to pay up on claims. Insurers have announced a steep
rise in the price of ‘cover’ after an unexpected breeze threatened to bring
chaos to Britain’s roads.

Seconds after a 'menacing' cloud (pictured) neared the
south-west coast of Cornwall underwriters warned of the need to raise prices
immediately. A spokesman for the Avaricious B******s Institute wept uncontrollably
as he explained to sleeping politicians that the risk of some stronger drizzle
than had been anticipated this week would force a 100% increase in the cost of
the average policy.

Taking a freshly peeled onion from his pocket, Mr Bruce Fibbs blamed fraudulent weather forecasting for the crisis but reassured everyone
that the industry would be able to crack down on the villains.

“Fortunately, we have a direct lying (Is this right? Ed) to Whitehall and should be able to rush through
legislation – sorry, I mean lobby for early action,” he consoled, bravely. “My
wife, Sheila, wails every time an injured claimant is compensated in accordance
with the law.”

His colleague, Mr High Heavens, quickly agreed. “This is
hugely damaging to executive salaries and shareholder dividends and it’s clear
that government must act. Policyholders have enjoyed the promise of a possible
reduction in costs – one fine day - for long enough now and it’s time we reneged
on that again as we always do”.

A spokesman for the Hatchet Insurance Co added his voice to
the protests. “The problem is all these wretched accident victims trying to
take our money away from us. If they think we’re going to pay compensation for
their injuries and losses, they must be deluded.”

“We’ve been running a charity for years”, he sobbed. “People
don’t seem to understand that these painfully low interest rates have meant
that we can no longer sit on our arses watching other peoples’ money earn us a
fortune. We’ve got to the point where we don’t just need to hold on to the cash
for as long as possible – we need to keep it!”

“It wouldn’t be quite so bad,” he spluttered, “if we could
just be left alone to deal with these misguided people direct and settle their
claims fairly - with a bunch of flowers and maybe a massage for the catastrophic
cases. The problem is that some of them hire lawyers who know what the claims
are truly worth and then make us pay for trying to rip-off their clients. These
people are deluded if they think….” (to
be continued… and continued… and continued…)

But the Minister of Injustice reacted quickly and
supportively to insurers’ concerns. “It’s a no-brainer”, said Miss Trust, “and
I, more than anybody, recognize that”.

Unveiling a new criminal offence of being injured or killed
by somebody else’s negligence, she warned that this would not become law
until next week. Furthermore, there would be a consultation on the new measures
later in the year.

“It’s desperately important that the rights and
misfortunes of ordinary individuals are not seen to be more important than
corporate profits and political favour”, she cautioned wisely.

Tuesday, 25 October 2016

It is said increasingly that we
are living in a post-truth age,
particularly with reference to modern politics.
Fairness and fact are usurped by false rumour and appeals to emotions.

Many solicitors dealing with
personal injury claims will tell you that the insurance industry is a far from
shining example of this murky culture.
We say you can’t trust them.

They have convinced recent past
governments, and much of the population, that injured people pursuing claims
for compensation are largely if not entirely fraudsters and that these claims,
and the costs associated with them, are responsible for relentless rises in
motor insurance costs.

The headline claims are
untrue. This has more to do with the
impact on profits and capital reserves of depressed interest rates over a long
period of time. See Smokescreenfor more on this.

Recently we’ve had yet further
headlines about the rising cost of policy premia, the average expected to hit
£700, despite all the so called curbs on costs that the industry duped a supine
government to implement. Still insurers
insist that whiplash isn’t real and inflate their statistics for “fraud” by the
inclusion of routinely abandoned claims.

The more audacious the yarn, the
bigger the impact – see Make the lie big. It all seems to be one way traffic. No wonder.
The Association of British Insurers (“ABI”) is a well organised and vocal
body representing huge and powerful corporations. It goes without saying they are well funded –
with our money. We pay them to mislead
us - and then pay them more.

We are hearing now about
the reported successes of insurers in defeating claims for what is known as fundamental dishonesty. This was another deterrent introduced a
little over three years ago whereby the penalties for false claims and
exaggeration were increased substantially.

It’s quite right of course that
people who pursue fraudulent claims should face the consequences but the latest
rules have created a climate where ordinary decent people pursuing genuine
claims for compensation to which they are entitled as a matter of law are
terrified of the risks.

Leading defendant law firms now
boast about the number of cases they have seen off by alleging fundamental
dishonesty and we know that a large section of the population would not now be
inclined to pursue a claim following an accident because of the stigma and
fears of this so called “compensation culture”.

Insurers portray themselves as
the white knights on the battlefield, protecting the premium-paying public from
these abuses. They tell the world that
it would be fine to change the rules so that all these expensive claimant
lawyers will drop out of the equation.
Genuine victims, they say, have nothing to fear and can trust insurers
to deal fairly with them and seek that they receive that to which they are
entitled by law.

Believe that?

If so, you may want to do
something about those long, furry ears.

For an example of how fair and
virtuous liability insurers can be, see the report that we posted on our
website earlier this month in the case of McLachlan v South Somerset District Council. It’s
a heart-warming tale of justice being done, despite the skulduggery of the Dark
Side.

The success or failure of public
liability claims often depends on whether or not there have been similar
accidents in the past which alerted the defendant to a need for action. You will see in the website report one of the
highlights of the trial which was the judge’s question “How many people have to
injure themselves before you realise there is a design issue?”

So, you don’t have to be any sort
of expert in this field to understand that if the knowledge and existence of
previous and similar claims can be suppressed and concealed, it’s going to be
far more difficult for the claimant to succeed.

In this case, the District
Council’s insurers lied to us repeatedly about the history of this car
park. They did so in correspondence, in
answer to pointed questions and despite at one stage information from us that
we already knew of at least one claim.

We were told in a letter of 28
June 2014 from insurers that:

“All
other users of the car park negotiated the area without incident”.

We asked them:-

“Are you referring to a particular space in time and group of users or the world at large at any time during which the kerbs have been in place?”.

Claims handler Charlotte wrote to
tell us on 18 July 2014:-

“We can confirm that we are saying there were no other incidents prior to your client’s accident”.

We were at that stage already on
to the fact that the “walking wounded” often limped to the nearest source of
assistance, the Octagon Theatre – see the headline to the report.

Ironically, the defendant council
as owner and control of the Theatre where – according to the manager who gave
evidence at the trial – so many victims reported, produced no records of any
such matters during the course of the proceedings. False disclosure statements,
anyone?

We made that point to them in a
letter dated 6 February 2015. We were
subsequently told, again, on 1 July 2015:-

“We note your comments, we can confirm that our insured are not aware of any other similar incidents or complaints in relation to this matter”.

In fact there had been at least
eight prior incidents. The complaint by one victim, who was injured approximately
five years before our client fell, was presented by then Somerset County Councillor
Cathy Bakewell MBE. In answer to
correspondence from the Head of Engineering and Property at the District
Council, she wrote:-

“Might the council consider highlighting the edges of the kerbs in order to make them stand out more, especially in the evening? Whilst there is lighting in the car park, it does not illuminate the kerbs. Might it be possible for the council to consider some additional lighting to assist pedestrians to avoid tripping over the kerbs?”

The trial judge said, “It is
difficult to think of a starker picture and I find it mind-boggling that the
defendant did nothing”.

But the key point of this piece
is to highlight the seemingly fearless – yet at times inept – attempt to
conceal the truth, with deliberate false statements about the history of the
matter that was crucial to success or failure of a meritorious claim.

Injury claimants who tell lies in
support of their fraudulent claims face the real prospect of going to prison.

Solicitors who connive at such
claims face the risk of being struck-off, losing their livelihood and perhaps
joining their clients behind bars.

What happens to insurance
companies and their employees who tell lies in support of their case?

Friday, 21 October 2016

I could weep as I read the latest
direct evidence of how the Ministry of
Injustice has smashed up our civil justice system. I fear we’re close to
the end of that Road to ruin I wrote
about 18 months ago.

Latest example comes in a case
where we are acting for a creditor whose debt was to be paid, by agreement and
consequent approval of the court, through a scheme of monthly instalments
backed up with a series of adjournments.

It worked well for a couple of
months but then fell victim to the state of affairs at our local court where it
seems that the minimum period of time now to process routine paperwork,
including formal orders, is 5 to 6 weeks.
In the last few months the scheme of adjournments has fallen off the
rails, with the most recent being more than two months. It’s no surprise the payments have dried up
and we are now trying to get it back on course.

No answer to correspondence so
one of my team telephones the court yesterday morning. She speaks to somebody who is new to her role
and doesn’t yet have access to the email system – so she can’t even tell us if
our communication has been received never mind dealt with.

Asked if there was somebody else
that we could speak to who might be able to help us, the answer is that they
are “incredibly short staffed” – so, no.

We could send another email marked
“urgent” to bring this up through the backlog in correspondence but there is no
guarantee because of course our call handler has no idea what’s on the system. Would
we have more luck calling tomorrow when somebody with access might be
available? Well, we are welcome to try
but there is no guarantee…

The last telephone case
management conference I dealt with in the same court, a few weeks ago, was a
farce because British Telecom couldn’t get anybody to answer the phone for half
an hour. I made small talk to the litigant
in person on the other side whilst the judge sat at his desk doing box work and
wondering why the telephone didn’t ring.

He did his best with only 15
minutes of a 45 minute case conference left.
Hopefully next time (if the court is still there) we shall be given a
direct dial number for the usher instead of waiting for somebody to man the
switchboard that also handles all business for the criminal and family courts.

In two other recent instances
final hearings have been postponed because there was no judge available.

This used to be such a reliable
and effective court. We had very capable
and helpful district judges - still do - supported by an administrative team
who always had too much to do but got it
done. We used to complain when they
told us that they were three weeks behind but they would find some more
resource and bring it up to date.

Things happened then.

I talked at the end of last year
to one of the people responsible for that culture – somebody whom you could
always depend on when it was necessary – a real “leave it to me” (and it will
get sorted) type.

I listened then to how the
5-week-old pile of post would come out of the cupboard each day and, after all
the more immediate and urgent stuff had been dealt with, go back in the
cupboard at the end of the day – the only change being that the pile was a
little higher.

I saw the look of desolation in
the once-bright eyes and understood the anxiety to retire and escape at the
first opportunity.

The good people have gone, or are
going. To the extent (partial) of their
being replaced then it’s with young recruits who lack experience, knowledge and
training. Not their fault but they don’t have it.

In response to the last
provisional assessment request we filed came a notice that the “detailed
assessment hearing” had been listed on a date when we should attend and “2
minutes 30 minutes (sic) has been allowed for the hearing”.

We pointed out the error and in
response received “notice that the provisional assessment hearing will take
place…” and in this instance 1 hour and 15 minutes had been allowed. Another
letter to the court drew the assurance that no attendance at the hearing was
necessary. The next order enclosed the
bill provisionally assessed by the district judge in the absence of the
parties.

Since then and approximately a
month later, we have had another ‘order’.

“IT IS ORDERED
THAT this case is on the list today.
However the bill has already been provisionally assessed…”

Magnificent.

I am waiting for an “order” one day “that I will be on holiday four weeks from
today so list that for when I get back – and I am just going out to get a
sandwich now”.

This is “justice” at work
nowadays. This is what people pay us to
grapple with to obtain orders that are a civilised society’s alternative to
self-help and anarchy.

Meanwhile we have people in
Salford who can’t process anything in less than a fortnight hunting for minor
arithmetical miscalculations or errors of procedure (that aren’t) and then
having to refer files to district judges whilst we wait weeks for news of
something happening.

In one case where “proper
officer” and district judge were both doing different conflicting things on the
file on the same day we ended up with a proper procedural mess which cost The
Court Service more than £3,000 in wasted costs (and that was just our side).

I can’t wait for Lord Briggs’
wonderful online courts, monitored by people who don’t have access to the
system and available to people who know nothing of law and procedure.

Sunday, 9 October 2016

Stephen Adams’ ugly polemic in
the Mail on Sunday seems to be branding all lawyers – certainly those involved
in the business of suing the NHS for compensation for victims of clinical
negligence - vultures. What a sweet guy.

He rants about the amounts paid
in costs during the last year in relation to damages claims (excluding costs)
that have trebled from £323 million to around £950 million over the last
decade.

All the rhetoric aside this is
fairly simple. Compensation is only paid in cases where a court decides that the
NHS has been negligent and so the claimant is entitled, according to the law,
to compensation or the NHS accepts that is the likely outcome and settles
before trial.

So – the first fact to get on
board is that all of these expenses arise because of proven or admitted
blunders for which the law says the innocent victim should be compensated.

In other words – and this is the real point of concern – cock-ups are
increasing at a frightening rate. No wonder where the service is so
under-funded and demoralised. No consolation there for the victims of that
growing number of mistakes who, our law says, should be compensated in the only
way possible – by the provision of funds to alleviate their suffering.

And as for costs – guess what? Yes,
they are only payable in successful cases so all the outrage is about the
expense of suing the NHS to pay damages they are liable to pay for getting it
wrong.

Forget the hardworking
individuals in this scenario. I admire them too. This is not about caning well-meaning folk who
are doing their best. It’s about recognising that because these lovely, caring
people are overworked and under-resourced, other innocent citizens are being
failed and in some cases very badly injured or worse.

Let’s be grown up and accept that
if you mess up, you need to make amends. By the way, an apology is a cracking
good start.

I expect that many sane people
see that but may ask, “Yes, but what about the amount of the costs?”

Good question.

First, there are many cases where
there is no justifiable complaint about the costs incurred by the claimant’s
solicitors. Remember that those sums – however much they are – form part of the
total costs paid alongside damages in claims which are proven or admitted to
have merit.

Secondly, there are too many
cases where the people tasked with fighting these claims on behalf of the NHS
lose all objectivity and pragmatism – fighting for the sake of it, where
sensibly they should be conceding the claims and working with victims’ lawyers
to make sure the right amount of compensation is paid.

But they don’t. As the MoS
article briefly mentions, it’s a “culture of defend, deny and delay”.

So, this pushes the costs up –
inevitably. There’s a good claim. Victim’s lawyers know it. What do they do?
Say, “Oh, the NHS are digging in – we’ll have to give up”? Of course not.

See Kerry
Underwood’s analysis earlier this year which contains links to cases where
the NHSLA has been fiercely criticised by judges for its attritional approach.

At this point it’s worth
repeating the unarguable message that the answer to this problem
comes, to a large extent, in two simple parts:

1.Don’t screw up (please)

2.If you do, ‘fess up – promptly

Finally, yes there are cases where
the fees claimed – even though the case succeeded – are too high. In some cases there is a genuine disagreement about what is reasonable. In others,
disreputable lawyers – a minority - are claiming too much.

The easy answer is always that
the court controls, by a formal process of detailed
assessment the amount payable. If the NHSLA thinks the bill is too high,
then it simply forces the matter before the court and if it makes sensible
offer of payment along the way, it can expect to recover its costs of fighting
the assessment.

Problem? There isn’t one – except
the culture of cock-up, cover up and clam up.

Remember – every single payout is
the product of a proven or admitted mistake.

The NHS, NHSLA and parts of the
media are all sick in various ways. Lawyers fighting fairly for justice are
sick of two of them.

As for Stephen Adams, he’s
succumbed to the temptation for personal gain to tar all lawyers with the same
brush. All generalisations are dangerous…

It would be like reading the Mail
and concluding that all newspapers are full of rubbish.